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It takes a village…

By | - May 12, 2016

Steve Benmor is a recognized divorce lawyer, family mediator, arbitrator, speaker, writer and educator. Mr. Benmor has worked as lead counsel in many divorce trials, held many leadership positions in the legal community and has been regularly interviewed on television, radio and in newspapers as an expert in Family Law.

That was the conclusion that Justice Marvin Kurz reached in the case of Torabi v. Patterson, 2016 ONCJ 210 (CanLII) dealing with whether 4 year old Dylan could maintain a relationship with his deceased mother’s family.

In a strongly worded decision, the court wrote:

“Tragedy can be as corrosive as the sturdiest acid, eating away at the bonds that hold families together. For the parties to this motion, the illness and death of a young mother whom they all loved led only to further dissention, conflict, and ultimately this court proceeding.”

After Dylan lost his mother to cancer, his mother’s family made up of his grandmother, aunts and uncles applied to Justice Kurz for access to Dylan. Dylan’s father opposed that request because of a history of family conflict with his in-laws. He argued that he is best able to determine his son’s best interests and, like any parent, he wishes to choose whom his child sees, when he does so, and under which circumstances. He argued that the court should not interfere with his parental discretion.  The mother’s family argued that it is in Dylan’s best interests that he maintain his close relationship with them and that, without contact, Dylan will never truly know his mother’s family and their Iranian culture and heritage.

Justice Kurz carefully reviewed the law of access by extended family members. After quoting the case of Giansante v. Di Chiara, 2005 CanLII 26446 that held that when a young child loses a parent, the deceased parent’s close family members may seek access even a strong pre-existing relationship is absent. Justice Kurz stated:

“In sum, the case law generally requires the following elements to constitute a “positive” relationship between a relative and a child, one that may supersede the right of the parents to decide whom the child sees:

  1. There must generally be a substantial pre-existing relationship between the relative and child. Strong loving and nurturing ties must exist between them based on time spent together that enhances the emotional well-being of the child.
  2. That relationship must be a constructive one for the child in the sense that it is worth preserving. If relations between the parties are too poisoned, a previously positive relationship may not be capable of preservation.
  3. The determination must include consideration of the age of the child and the time since the child last saw the relative.
  4. A fourth factor may apply in the exceptional circumstance of a young child who has lost a parent. In that event, the existence of a strong pre-existing relationship may not be necessary when the relatives of the lost parent applies for access.”

In examining Dylan’s relationship with his mother’s family, Justice Kurz stated that “each member of the Razzaghi family before the court had a relationship with Dylan that he or she finds meaningful. Undoubtedly at some time, Dylan enjoyed spending time with each.”

Justice Kurz also considered what Dylan’s mother wrote 17 days before her death:

“I appeal to Ken and my family members to work together, to put aside any differences they may have and always act with each other in a manner that is in Dylan’s best interest. Only then will my soul and spirit truly rest in peace.”

In the end, Justice Kurz decided that Dylan will see his mother’s family one weekend afternoon per month for 6 hours. The order was just temporary and may be changed later.

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